Overview

Title IX of the Education Amendments of 1972 prohibits discrimination based on sex/gender in educational programs and activities that receive federal financial assistance. As our institutions are recipients of federal financial assistance in many arenas, we actively strive to ensure compliance with Title IX and other federal and state civil rights laws while creating a campus environment that empowers all who are a part of our community to be safe from harm and to be a part of Title IX compliance efforts. The institutions have developed and approved Board of Governors policies that prohibit discrimination and sexual misconduct on the basis of sex (See http://www.fairmontstate.edu/aboutfsu/sites/default/files/bog-policies/f...), to include but not be limited to such behavior as sexual misconduct and sexual violence.

Compliance with Title IX is the responsibility of all members of our institutional community—Coordinators, faculty, staff and students. All employees and students are required to report events and behavior that is perceived as or can be construed as gender or sexual discrimination, harassment, misconduct or assault.

The Assistant Vice President for Human Resources and Campus/Community Relations serves as the institutional Title IX Coordinator, who is advised and assisted by a team of six Deputy Coordinators representing all of the various employee groups.

Procedures for Reporting and Responding to Reports of Discrimination

The following procedures have been adopted by our institutions to receive, investigate, and resolve complaints of discrimination on the basis of sex, gender, sexual identity and sexual affinity. These procedures are designed to provide a supportive process for individuals who report discrimination and also to ensure a fair process for individuals who are accused of discriminatory conduct. Internal investigation of allegations of institutional discriminatory treatment or systemic discriminatory practices is intended to ensure that our institutions ensure not only our compliance with all regulations but also our commitment to an open and inclusive educational and employment environment that keeps students, employees and visitors to our campuses safe. These procedures also describe the institutions’ processes to conduct timely, thorough, and fair investigation as required by law.

Sexual misconduct, including sexual misconduct and sexual violence, has been recognized as a form of discrimination that violates Title IX. The term “sexual misconduct” as used hereafter in this information will generally/universally refer to any form of oral or written sexual/gender harassment, sexual misconduct, sexual assault, sexual violence or sexual abuse. The term “discrimination” will refer to other types of discrimination on the basis of sex, gender, gender identity or sexual orientation, such as in hiring and employment practices or access to facilities or programs, e.g.

Making Reports of Title IX Discrimination

The Assistant Vice President for Human Resources is the institutions’ Title IX Coordinator and has primary responsibility for coordinating institutional efforts for educating our campus constituency on Title IX, as well as the investigation, resolution, implementation of corrective measures, and monitoring the educational environment and workplace to stop, remediate, and prevent discrimination on the basis of sex. Chairs, deans, department Coordinators, and supervisors have a duty to identify and report sexual misconduct or other discriminatory behaviors. Employees and persons with responsibility for supervising or ensuring safety of others (including student employees in the course of their employment duties) have a duty to report discriminatory behaviors observed or reported to them. Chairs, deans, department Coordinators and supervisors should be directly involved in resolving allegations of discrimination or sexual misconduct. The Title IX Coordinator and Deputies will investigate allegations of discrimination in consultation with the respondent's supervisor, provided the supervisor is not an alleged perpetrator. Chairs, Deans, department Coordinators and other supervisors have a duty to monitor the respondent's behavior and to take appropriate disciplinary action if he or she continues to violate university policy or procedure including further acts of discrimination and/or acts of retaliation.

Complaints of discrimination from a student or other member of the University community against a member of the staff of Human Resources or of a department /work unit of any of the Deputies shall report the complaint to the appropriate institutional President’s Office.

Investigation of Reports of Title IX Discrimination; Oversight by Title IX Coordinator

Fairmont State University’s Title IX Coordinator has the authority to:

a. Accept all complaints and referrals from students, employees or visitors at all institutional campuses or work locations and any that may be so designated in the future;

b. Keep accurate records of all complaints and referrals for the required time period according to institutional records retention policy;

c. Conduct investigations to the level required under DOE regulations;

f. Make recommendations for corrective measures including training, counseling and/or discipline, when appropriate;

g. Refer any recommendation for discipline to the President for implementation in accordance with institutional policy;

h. Oversee implementation of corrective measures, which may include follow-up to ensure that appropriate action was taken to complete the recommended actions, as well as continual monitoring to ensure ongoing compliance;

i. Require an institutional Coordinator or supervisor responsible for taking corrective action who decides not to adopt a recommendation of the Title IX Coordinator to explain this decision in writing;

j. If the Title IX Coordinator determines that the reasons offered by an institutional administrator or supervisor for not adopting a recommendation for corrective action are insufficient, s/he shall bring the matter to the attention of the President and Provost (for faculty issues) or appropriate Vice President (for staff). The appropriate Vice President and/or Provost, in consultation with the Title IX Coordinator and with the support of the President, shall direct the Coordinator to take appropriate corrective measures to ensure that discrimination is prevented from recurring and its effects on the complainant and others are remedied. Administrators or employees who then refuse to make corrective actions may be formally disciplined, at the direction or approval of the President.

In some circumstances, investigation and disposition of complaints may be referred to other offices within the institutions, such as Housing or Student Judiciaries or Athletics; however, ultimate oversight remains with the Title IX Coordinator to coordinate and ensure the institutions’ compliance with Title IX. To assure institution-wide compliance with this policy and with federal and state law, the Title IX Coordinator must be advised of all reported incidents of discrimination or sexual misconduct and their resolution, regardless of where the complaint is brought, investigated, or resolved.

These procedures apply to all members of the campus community, including students, faculty and staff.

1) Definitions

Sex Discrimination: Behavior or action that denies or limits a person's ability to benefit from, fully participate in educational programs or activities or employment opportunities because of a person's sex, gender, sexual identity or sexual orientation or affinity. Examples include, but are not limited to, sexual misconduct, sexual harassment, sexual abuse and sexual violence, as well as failure to provide equal opportunity in educational programs and co-curricular programs including athletics, discrimination based on pregnancy, and employment discrimination.

Sexual Misconduct: A range of behaviors including sexual harassment and sexual violence. Includes unwelcome sexual advances, requests for sexual favors, offering grades, gifts or other incentives in exchange for sexual favors and other verbal or physical conduct of a sexual nature that (a) is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or to create a hostile or abusive educational environment, or (b) explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Gender Discrimination or Gender Harassment: Includes discrimination or verbal/ physical harassment which is based on the person's gender but which is not sexual in nature. The University’s and the College’s policies prohibit gender-based harassment, which may include discrimination or sexual misconduct on the basis of sexual orientation, gender identity or gender expression, and harassment or discrimination on the basis of sex-stereotyping.

Reporter: Any member of the campus community (students, faculty, staff, Board members or others). The institutions have deemed all members of the campus community responsible for reporting to the Title IX Coordinator (or to an appropriate administrator who will report to the Title IX Coordinator) any actions or behavior they believe to be in violation of Title IX and the institutions’ policy on Title IX compliance.

Complaint: A description of facts that allege violation of the institutions’ policy against discrimination or sexual misconduct. The Title IX Coordinator may request that a complaint be made in writing, or, as may be necessary, taken as a report from the Complainant by the Coordinator, a Deputy or a designee approved by the Title IX Coordinator.

Complainant: A student(s) or employee(s) of the institution who alleges that she or he has been subjected to a discriminatory practice or sexual misconduct. A third-party complainant is a person who brings a complaint on behalf of another member(s) of the campus community who has allegedly been the subject of discrimination or sexual misconduct. Complainants may be individuals or groups of individuals who have been impacted by discrimination or sexual misconduct.

Inquiry: A request from a member of the institutional community for information about the policy or the procedures for resolving a situation that involves discrimination or sexual misconduct. An inquiry may also refer to an informal notification that discrimination or sexual misconduct may have occurred and/or request for information about where or how to bring a complaint.

Respondent(s): Person or persons who are members of the campus community who allegedly discriminated against, harassed or assaulted another person or persons. Respondents may be individuals, groups, programs, academic or administrative units, or the institution.

Witnesses: Persons who have information about the alleged sexual misconduct that will tend to prove, disprove, or otherwise illuminate an investigation of a complaint. There are times when a witness is unwilling to report what he or she knows, due to fears of reprisal, friendship with the accused, e.g. Because of the seriousness of sexual misconduct or sex/gender discrimination, however, the institution may choose to designate such a person as a “reluctant witness” and thus incent their cooperation. If the institution deems a witness “reluctant,” it must be done in writing on the appropriate form.

Investigation: A fact finding inquiry by Title IX Coordinator and/or Deputies that attempts to determine whether behavior in violation of policy prohibiting discrimination or sexual misconduct occurred, and makes recommendations for resolution of the discriminatory or harassing conditions.

2) Options for Resolution

Individuals making reports of discrimination or sexual misconduct shall be informed about options for resolving potential violations of the policies which prohibit discrimination or sexual misconduct. These options include informal dispute resolution, referral to other university/college offices or programs, formal investigation by the Title IX Coordinator and availability of resources outside the institutional process. The University/College shall respond, to the greatest extent possible, to reports of discrimination or sexual misconduct brought anonymously or brought by third parties not directly impacted by the discrimination or sexual misconduct. However, the response to such reports may be limited if information contained in the report cannot be verified by independent facts.

Complainants and other individuals bringing reports of discrimination or sexual misconduct shall be informed about the range of possible outcomes of the report, including interim protections, remedies for the individual harmed by the discrimination or sexual misconduct, and disciplinary actions that might be taken against the accused as a result of the report, including information about the procedures leading to such outcomes.

Retaliation: An individual who is subjected to retaliation (e.g., threats, intimidation, reprisals, or adverse employment or educational actions) because he or she (a) made a report of discrimination or sexual misconduct in good faith, (b) assisted someone with a report of discrimination or sexual misconduct, or (c) participated in any manner in an investigation or resolution of a report of discrimination or sexual misconduct, may make a report of retaliation under these procedures. The report of retaliation shall be referred by the Title IX Coordinator to the appropriate academic or administrative supervisor and to the HEPC/CTCS General Counsel’s Office.

Temporary Measures: The President may at any point in the complaint process elect to place the respondent on investigative leave, reassignment, or authorize other types of temporary measures while an investigation is pending, including but not limited to "no contact" provisions.

a) Procedures for Informal Resolution

The institutions encourage informal resolution options when the parties desire to resolve the situation cooperatively, or when inappropriate behavior does not rise to the level of violation of university/college policy as determined by the Title IX Coordinator, but nonetheless is adversely affecting the workplace or educational environment. Informal resolution may include an inquiry into the facts, but typically does not rise to the level of an investigation.

Informal resolution includes but is not limited to options such as referral to another campus office or program (such as the Student Judicial Office), mediation, separation of the parties, referral of the parties to counseling programs, or conducting targeted educational and training programs. Situations that are resolved through informal resolution are usually subject to follow-up after a period of time to assure that resolution has been implemented effectively. Steps taken by the Title IX Coordinator (in conjunction, as appropriate, with administrators in other offices or programs) to help the parties achieve informal resolution will be documented.

Some reports of discrimination or sexual misconduct may not be appropriate for informal resolution, but may require a formal investigation at the discretion of the Title IX Coordinator.

b) Procedures for Formal Investigation

In response to reports of discrimination or sexual misconduct in cases where the complainant does not wish to engage in informal resolution, where informal resolution is not appropriate, or in cases where attempts at informal resolution are unsuccessful, the Title IX Coordinator or appointed designee may conduct a formal investigation. In such cases, the individual making the report shall be encouraged to file a written complaint. In cases where there is no written complaint, such as situations that involve a third party complaint, the Title IX Coordinator may initiate an investigation after making a preliminary inquiry into the facts, and will inform the person(s) who were allegedly harmed by discrimination or sexual misconduct of the decision to initiate an investigation.

Investigations of reports of discrimination or sexual misconduct shall incorporate the following standards:

1. The Office of the Title IX Coordinator in Human Resources is the designated university/college unit to conduct formal investigation of allegations of discrimination or sexual misconduct, and to coordinate institutional response(s) to complaints of the same.

2. The individual(s) accused of conduct violating the institutional policy prohibiting sexual misconduct shall be provided a copy of the written complaint or otherwise informed of the substance of the allegations. If the individual(s) accused cannot be located, attempts at notification shall be documented,

3. The individual(s) conducting the investigation shall be familiar with the policy prohibiting discrimination or sexual misconduct and have training and/or experience in conducting investigations.

The investigation generally shall include interviews with the parties if available, interviews with other witnesses as needed and a review of relevant documents as appropriate. Disclosure of facts to witnesses shall be limited to what is reasonably necessary to conduct a fair and thorough investigation. Participants in an investigation shall be advised that maintaining confidentiality is essential to protect the integrity of the investigation and will be advised to refrain from discussing the pending investigation.

4. At any time during the investigation, the investigator may recommend that interim protections or remedies for the complainant or witnesses be provided by appropriate university/college officials. These protections or remedies may include separating the parties, placing limitations on contact between the parties, making alternative workplace or student housing arrangements or the suspension without pay or termination of the alleged perpetrator. Failure to comply with the terms of interim protections may be considered a separate violation of the policy prohibiting sexual misconduct.

5. The investigation shall be completed as promptly as possible and in most cases within 60 working days of the date the written complaint was received. In the event that an investigation cannot be completed within 60 days, the parties shall be notified in writing.

6. Generally, an investigation will result in a written report that, at a minimum, includes a statement of the allegations and issues, a summary of the information considered, findings of fact, and a determination by the investigator as to whether university policy has been violated. For allegations of discrimination or harassing behavior, there are three possible findings:

(a) Substantiated: It is more likely than not that the allegation is true.

(b) Unsubstantiated: It is not possible to determine whether the allegation is true or untrue. There is insufficient evidence to prove or disprove that the allegation is true.

(c) Unfounded: It is more likely than not that the allegation, while made in good faith, is untrue. A finding that the allegations are unfounded does not indicate that the complaint was improper or knowingly false.

The distribution of such reports shall be limited to those with “a need to know.” In no case will such reports be public information. This is done to protect the confidentiality and privacy of the victim.

7. No person shall make an allegation that he or she knows to be untrue or knowingly provide false information during the course of an investigation. Making a false complaint or giving false information is a violation of this guideline and may be a basis for discipline, including expulsion or termination of employment. Evidence of false complaints or false information shall be referred by the Title IX Coordinator to HEPC/CTCS General Counsel’s Office.

8. The report also may contain recommendation for actions to resolve the complaint, including but not limited to educational programs, counseling/coaching, mediation, remedies for the complainant, and a referral to disciplinary procedures, as appropriate.

9. The report may be used as evidence in other related procedures, such as subsequent complaints, grievances and/or disciplinary actions or lawsuit.

10. The complainant and the respondent shall be informed in writing of the completion of the investigation and the outcome of the investigation. The complainant shall be informed of the findings and of actions taken or recommended to resolve the complaint, if any, that are directly related to the complainant, such as a recommendation that the accused not contact the complainant. The complainant may be notified generally that the matter has been referred for disciplinary action, but shall not be informed of the details of the recommended disciplinary action without the consent of the respondent. The respondent shall be informed of the findings and of actions taken or recommended to resolve the complaint and shall be notified generally of referrals for disciplinary action and recommended disciplinary action.

11. Complainant and respondent(s) may request a copy of the investigative report pursuant to institutional policy or guidelines governing privacy and access to personal information.

12.Copies of the investigative report will be provided to those institutional coordinators, academic leaders, and supervisors who are directly responsible for implementing measures to correct and prevent discriminatory or harassing conditions, with the proviso that they maintain confidentiality and understand the sensitivity of the information which they have been provided, and its limited use and restricted distribution.

13. Regardless of the method of resolution or the outcome, Complainant is at all times free to pursue a complaint, as appropriate, with the Equal Employment Opportunity Commission, the West Virginia Human Rights Commission, the United States Department of Education (Office for Civil Rights), the United States Department of Labor (Office of Federal Contract Compliance Programs), or by consulting a labor/employment attorney at her or his own expense.

3) Privacy

The institution shall protect the privacy of individuals involved in a report of discrimination or sexual misconduct to the extent allowed by state and federal law and institutional policy. A report of discrimination or sexual misconduct may result in the gathering of extremely sensitive information about individuals in the university/college community, and the institution may be required to disclose personal information in accordance with West Virginia public records law.

Questions not addressed here may be directed to the Office of the Title IX Coordinator for Fairmont State University: